tag:blogger.com,1999:blog-5574479.post1207743253222491031..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: Looking back over this GreeKat shoulder… Part I: Thou shall plain pack no matter what you sellVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5574479.post-36654745029981905622015-12-16T19:34:54.606+00:002015-12-16T19:34:54.606+00:00The assertion that the trade mark right is a right...The assertion that the trade mark right is a right to exclude and not a right to use is, in my view, mistaken.<br /><br />While it is certainly true that IP rights are not absolute and must be viewed in relation to their social function, numerous rulings from the Court of Justice of the European Union have confirmed that the subject matter of a trademark is, in particular, to guarantee to the owner that he has the exclusive right to USE that trade mark for the purpose of putting a product on the market – see para 44 Bristol-Myres Squibb and others v Paranova, Case C-427/93.<br /><br />In her Opinion delivered on 6 April 2006 in Case C-348/04, Advocate General Sharpston concluded:<br /><br />"Para 9 – The specific subject-matter of a trade mark thus has two components. First, there is the right to use the mark for the purpose of putting products protected by it into circulation for the first time in the EC, after which that right is exhausted. Second, there is the right to oppose any use of the trade mark which is liable to impair the guarantee of origin […]."<br /><br />The need to grant protection to trademark use thus stems from the very function of trademarks, i.e. to distinguish goods and services in the course of trade. As Advocate General Jacobs concluded in his Opinion delivered on 20 September 2001 in Case C-2/00:<br /><br />"Para 35 – […] Use by the proprietor is indeed a central and essential element of ownership. […] Use of a trade mark involves identifying the proprietor's goods or services as his own. Although perhaps so self-evident that it may not be specifically set out in trade mark legislation, that is the purpose for which trade marks exist […]."<br /><br />The function and use of trade marks is recognized as the key rationale for trademark protection in the EU. This view finds further support in the principle of the unitary character of CTMs, i.e. a CTM enjoys the same protection, and is subject to the same restrictions, throughout the entire territory of the EU. This principle, also referred to in Article 1(2) of the CTMR, precludes Member States from interfering with the right to USE a CTM as a result of domestic provisions, which I would argue, includes plain packaging law.<br /><br />The flaw in the ‘plain packaging’ laws of France, Ireland and the United Kingdom is that they are a disproportionate and intolerable interference with the trademark rights of their owners, which impair the very substance those rights guarantee. By curtailing the right to use, France, Ireland and the United Kingdom have effectively abolished what Advocate General Jacobs called, the ‘central and essential element of ownership’.<br />Anonymoushttps://www.blogger.com/profile/04204384477181635254noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-50106322194410995942015-11-27T20:11:21.799+00:002015-11-27T20:11:21.799+00:00I do not find it helpful to classify (in such a co...I do not find it helpful to classify (in such a conclusory manner) with the word "paternalistic."<br /><br />Part of the <b>legitimate</b> government function is to BE "paternalistic."<br /><br />Using that word in such a presumptive manner merely "gets in the way," and prevents the realization of perhaps the <i>better</i> question of what types of things should or should not fall <i>properly</i> into a zone in which here in the States falls - at least - under the phrase "promote the general welfare."THE US anonnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-15714810798089068342015-11-27T12:29:30.756+00:002015-11-27T12:29:30.756+00:00Plain packaging has nothing to do with trade marks...Plain packaging has nothing to do with trade marks. <br /><br />Plain packaging has everything to do with packaging and presentation of the product. Trade marks are one of a vastly larger class of elements that cannot be placed on a "plain-packaged product". Copyrighted images, also, cannot be placed on a "plain-packaged product", yet no-one decries this as unlawful appropriation of copyright.<br /><br />Trade marks can still be affixed to the product per se (inside the plain wrapping), or can be used in relation to other products than the proscribed products. Additionally, word-marks can be used at the point-of-sale - this use of the trade marks is not blocked. In such scenarios, the trade marks would still fulfill their function of guarantor of economic origin. <br /><br />The trade-mark right is a right to exclude, not a right to use. Plain packaging thus cannot deprive the trade-mark owner of his property - he has exactly the same power to exclude as once he had before.<br /><br />I repeat, therefore: Plain packaging has nothing to do with trade marks. <br /><br /><br />PuffinPetenoreply@blogger.com